Citation Nr: 0630064
Decision Date: 09/22/06 Archive Date: 10/04/06
DOCKET NO. 93-06 131 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an evaluation in excess of 30 percent
prior to April 8, 1997, for residuals of leech bites.
2. Entitlement to an evaluation in excess of 10 percent from
April 8, 1997, to August 29, 2002, for residuals of leech
bites.
3. Entitlement to an evaluation in excess of 30 percent
since August 30, 2002, for residuals of leech bites.
4. Entitlement to an effective date earlier than January 23,
1991, for the grant of service connection for residuals of
leech bites.
WITNESSES AT HEARING ON APPEAL
Veteran and spouse
ATTORNEY FOR THE BOARD
J.W. Kim, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1966 to
January 1968, including service during the Vietnam Era.
These matters come before the Board of Veterans' Appeals
(Board) on appeal of a December 1999 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan. In that rating decision, the RO granted
service connection for residuals of leech bites and assigned
a 30 percent evaluation effective January 23, 1991, and a 10
percent evaluation effective April 8, 1997. The veteran
appealed for an earlier effective date for the grant of
service connection and for higher evaluations.
The RO assigned the effective date based on a VA hospital
report dated January 23, 1991. In a January 2000 rating
decision, the RO determined that the assignment of that date
was clearly and unmistakably erroneous, and assigned an
effective date of January 31, 1991, the date of receipt of
the veteran's claim to reopen.
In September 2001, the Board remanded the appeal for further
development. In that remand, the Board characterized the
effective date issue as that of entitlement to an effective
date earlier than January 23, 1991, for the grant of service
connection for residuals of leech bites. Thus, the issue
will remain as listed on the title page.
In an October 2004 rating decision, the RO granted a 30
percent evaluation effective August 30, 2002. The veteran
has not indicated that he is satisfied with this rating.
Thus, the claim is still before the Board. See AB v. Brown,
6 Vet. App. 35, 38-39 (1993). Furthermore, the issues are as
listed on the title page.
In June 2006, the veteran testified before the undersigned
Veterans Law Judge at a Board hearing at the RO. At the
hearing, the veteran submitted additional evidence with a
waiver of initial RO consideration. Thus, the Board will
consider the additional evidence in conjunction with this
appeal.
On another matter, the record reasonably raises a claim of
entitlement to service connection for body tremors, to
include as due to exposure to Agent Orange. The issue is
referred to the RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
REMAND
After review, the Board observes that further development is
required prior to adjudicating the veteran's claims. In this
regard, the Board notes that there may be outstanding VA
medical records relevant to this appeal.
Initially, the Board notes the veteran's assertion that VA
medical records from 1968 to 1970 that were previously of
record have been misplaced. The Board also notes that most
of the VA treatment reports of record have been submitted by
the veteran.
The Board next notes that the record is unclear as to whether
the RO has made adequate attempts to obtain any outstanding
VA medical records. In this regard, the Board notes that the
RO has made several requests for VA medical records. In
February 1991, the RO requested outpatient treatment reports
from the Allen Park VA Hospital (VAH). The response states
that there are no records since the veteran's discharge on
February 8, 1991. In March 1991, the RO made a request for
any outpatient treatment reports. The response included
reports that had already been submitted by the veteran.
The Board further notes that, at a February 1992 hearing at
the RO, the veteran indicated that he had been receiving
outpatient treatment at the Allen Park VAH since February
1991, with the last treatment about three months earlier.
The record reflects that the RO requested records in July
1992. The response, however, did not include any treatment
reports during the time period as indicated by the veteran.
As noted above, the veteran has submitted VA outpatient
treatment notes, including those from the John D. Dingell VA
Medical Center. These include treatment notes dated from
March 2000 to September 2002. The record is unclear as to
whether the RO has made adequate attempts to obtain any
additional VA treatment reports during that time period or
even to determine if there are any.
With respect VA medical records, the Board observes that
records generated by VA facilities that may have an impact on
the adjudication of a claim are considered constructively in
the possession of VA adjudicators during the consideration of
that claim, regardless of whether those records are
physically on file. See Dunn v. West, 11 Vet. App. 462, 466-
67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Thus, the RO should obtain any additional records from the
above VA facilities and associate them with the claims file.
Lastly, the Board notes that the veteran no longer has
representation. Thus, the RO should send the veteran the
appropriate forms to allow him to choose a representative if
he so desires.
Accordingly, the case is REMANDED for the following action:
1. The RO should send the veteran the
appropriate forms to allow him to choose a
representative if he so desires.
2. The RO should obtain and associate
with the claims file all treatment reports
not previously of record from the Allen
Park VA Hospital and John D. Dingell VA
Medical Center since the veteran's
separation from service in January 1968.
In this regard, the Board notes that the
former hospital is no longer in service;
thus, appropriate steps should be taken to
obtain those records. The RO is reminded
that efforts to obtain government records
must continue until it is reasonably
certain that such records do not exist or
that further efforts to obtain those
records would be futile. Should the RO
reach either or both conclusions, it must
so state in a notice to the veteran and
his representative.
3. Thereafter, the RO should readjudicate
the issues on appeal. If any benefit
sought on appeal remains denied, the
veteran and his representative, if any,
should be furnished a supplemental
statement of the case and afforded an
appropriate opportunity for response
before the claims file is returned to the
Board for further appellate consideration.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).